Date: 20021107
Docket: T-60-02
Neutral citation: 2002 FCT 1153
Montréal, Quebec, November 7, 2002
Before: Blais J.
BETWEEN:
DANIEL ROBITAILLE
Plaintiff
and
ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
[1] This is a written motion by the plaintiff under Rule 369 of the Federal Court Rules (1998) requesting an extension of the time allowed by s. 18.1(2) of the Federal Court Act for filing an application for judicial review under that subsection.
[2] I have carefully considered the plaintiff's motion record, affidavit and the exhibits attached to his record.
[3] I have also considered the reply to the plaintiff's application for an extension prepared by counsel for the defendant.
[4] On October 23, 2002, the plaintiff filed a document titled [TRANSLATION] "Written submission[s] in reply to defendant's reply", raising major objections to the truth of certain allegations by Francine Dufresne filed in an affidavit in support of the defendant's reply.
[5] I have also considered a letter from counsel for the defendant, Sébastien Gagné, following the filing of the plaintiff's document "Written submission[s] in reply to defendant's reply".
[6] In his letter Mr. Gagné maintains that the document was never served on him.
[7] It appeared from the various documents entered in Court that there was a conflict as to whether the third level grievance at issue in the case at bar is in fact the one the decision on which, dated October 11, 2002, was signed by Cheryl Fraser, a decision allegedly relating to the third level grievance filed by the applicant on September 10, 2002, as No. P-5, as an appendix to the affidavit of Ms. Dufresne.
[8] Although these facts are contradicted by the plaintiff's affidavit of October 21, 2002, it does appear that the decision at issue in the instant application for an extension of time is the one which was the subject of the third level grievance the conclusion on which was rendered on October 11, 2002. However, I find it strange that on the same day, October 11, 2002, Ms. Dufresne signed an affidavit stating in paragraph 10 that the said grievance by the applicant was currently being reviewed at the third level, although in reality the decision was rendered the same day.
[9] I understand that when she signed her affidavit Ms. Dufresne might not know that a decision had been rendered by someone else in the plaintiff's case on the same day. At the same time, counsel for the defendant should have known that the third level decision was rendered at the time he filed his reply to the application for an extension of time, dated October 15, 2002, that is, four days later. In his argument, on p. 15 of his record, counsel for the defendant stated in paragraph 19: [TRANSLATION] "This grievance is still under review".
[10] It is possible that counsel was unaware that the decision had been rendered four days before, but it was his duty to inform the Court of this as quickly as possible so as to avoid any confusion in the further progress of the case.
[11] It accordingly appeared that the decision challenged by the plaintiff led to a conclusion in the grievance procedure on October 11, 2002.
[12] Consequently, the plaintiff is still within the deadline for filing an application for judicial review if necessary.
[13] It appeared from reading the record that the application for judicial review is both belated and premature, depending on the viewpoint taken. On the one hand, if the plaintiff wished to challenge the decision by Ms. Fraser, assistant commissioner, policy, planning and coordination, dated July 17, 2002, the deadline has expired.
[14] On the other hand, if he wished to challenge the third level decision also rendered by Ms. Fraser, but on October 11, 2002, his motion filed on October 3, 2002 was premature.
[15] In the case at bar, in order to succeed in his motion the plaintiff must provide a reasonable explanation to justify the time that has elapsed and satisfy the Court that there are serious points to be decided in his case.
[16] The minimal prerequisites for granting an extension of time to file an application for judicial review have been decided by well-settled precedent.
[17] The plaintiff's explanations to justify the delay in filing his application did not persuade the Court that he was unable to file an application for judicial review within the time allowed.
[18] Although the plaintiff submitted a challenge, still in outline, to the acts alleged against him, which led to the decision to transfer him to another penitentiary, he did not in his written pleadings raise any serious question requiring argument that could have a possibility of success if his application for judicial review was heard.
[19] Additionally, the Court takes into account that the plaintiff is still within the deadline for applying for judicial review of the decision rendered on October 11, 2002.
ORDER
THE COURT ORDERS THAT:
The instant motion is dismissed.
The whole with costs.
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"Pierre Blais"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
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FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021107
Docket: T-60-02
Between:
DANIEL ROBITAILLE
Plaintiff
and
ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
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FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-60-02
STYLE OF CAUSE: DANIEL ROBITAILLE
and
ATTORNEY GENERAL OF CANADA
WRITTEN MOTION CONSIDERED IN MONTRÉAL WITHOUT APPEARANCE BY PARTIES
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATE OF REASONS: November 7, 2002
WRITTEN SUBMISSIONS:
Daniel Robitaille FOR THE PLAINTIFF
Sébastien Gagné FOR THE DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario
See affidavit by Francine Dufresne, dated October 11, 2002. That affidavit is on p. 2 of the reply record at bar.
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